Frailich v. Zwerling, Schachter & Zwerling, LLP

FILED
NOT FOR PUBLICATION AUG 10 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

REENA B. FRAILICH, on behalf of No. 10-55372
herself and all others similarly situated; et
al., D.C. No. 2:05-cv-03222-R-Mc

Plaintiffs - Appellees,
MEMORANDUM *
v.

ZWERLING, SCHACHTER &
ZWERLING, LLP,

Appellant.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted March 5, 2012
Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

Zwerling, Schachter & Zwerling, LLP argues that the district court abused

its discretion in declining to add a risk multiplier to the firm’s award of attorneys’

fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
 In Fischel v. Equitable Life Assurance Soc’y of U.S., 307 F.3d 997 (9th Cir.

2002), we held that a district court abuses its discretion in failing to apply a risk

multiplier “when (1) attorneys take a case with the expectation that they will

receive a risk enhancement if they prevail, (2) their hourly rate does not reflect that

risk, and (3) there is evidence that the case was risky.” Id. at 1008; see also In re

Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299–1304 (9th Cir.

1994). Applied here, Fischel does not compel us to find an abuse of discretion.

Although the district court made factual findings that the case (prior to settlement)

was risky, there is no indication in the record that Zwerling Schachter took the case

with the expectation that the firm would receive a risk enhancement or that the

firm’s hourly rate did not reflect the risk. The district court did not abuse its

discretion in concluding that a risk multiplier was not warranted in light of the

“excessive fees and noncompensable work, including work done to preserve the

award of attorneys’ fees, work done in connection with the Park litigation, and

other work performed that conferred no benefits on the Class.” Indeed, more than

two-thirds of the attorneys’ fees sought by and awarded (without a risk multiplier)

to Zwerling Schachter were for efforts on appeal, at which time the case was no

longer fraught with risk.

AFFIRMED.

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